73R11027 E
By Sims S.B. No. 964
Substitute the following for S.B. No. 964:
By Earley C.S.S.B. No. 964
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the location, survey, sale, and lease of vacant and
1-3 unsurveyed public school land and certain public boundaries and
1-4 related fees.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Subchapter E, Chapter 51, Natural Resources Code,
1-7 is amended to read as follows:
1-8 SUBCHAPTER E. SALE AND LEASE OF VACANCIES
1-9 Sec. 51.171. SALE AND LEASE OF VACANT LAND. (a) Vacant and
1-10 unsurveyed public school land shall be located, sold, and leased
1-11 under this subchapter, except:
1-12 (1) submerged lands within tidewater limits;
1-13 (2) all islands, flats, and emergent lands within
1-14 tidewater limits;
1-15 (3) natural lakes; and
1-16 (4) riverbeds, including channels and islands in
1-17 riverbeds, above tidewater limits.
1-18 (b) This subchapter does not alter or diminish the public
1-19 domain status of the surface estate of riverbeds and channels and
1-20 islands in riverbeds that are located above tidewater limits.
1-21 Sec. 51.172. DEFINITIONS. In this subchapter:
1-22 (1) "Applicant" means any person who files an
1-23 application. The term may include a good-faith claimant.
1-24 (2) "Application" means an application to purchase or
2-1 lease a vacancy under this subchapter.
2-2 (3) "Good-faith claimant" means a person who:
2-3 (A) occupies or uses or whose predecessors in
2-4 interest have occupied or used a vacancy for purposes other than
2-5 exploring for or removing or purporting to lease or otherwise
2-6 convey oil, gas, sulphur, other minerals, or geothermal resources
2-7 from the vacancy;
2-8 (B) has had, or whose predecessors in interest
2-9 have had, the vacancy enclosed or within definite recognized
2-10 boundaries and in possession for a period of 10 or more years with
2-11 a good-faith belief that the vacancy was included within the
2-12 boundaries of a survey or surveys that were previously titled,
2-13 awarded, or sold under circumstances that would have vested title
2-14 in the vacancy if it were actually located within the boundaries of
2-15 the survey or surveys;
2-16 (C) is the owner of land adjoining a vacancy on
2-17 which no application has previously been filed; or
2-18 (D) holds under a good-faith claimant or is
2-19 entitled to a distributive share of any title acquired under an
2-20 application made by a good-faith claimant.
2-21 (4) "Interest" means any right or title in or to real
2-22 property, whether affecting the surface, subsurface, or mineral
2-23 estate, including:
2-24 (A) fee simple title;
2-25 (B) a determinable fee created under a mineral
2-26 lease or conveyance or otherwise;
2-27 (C) a royalty, nonparticipating royalty, or
3-1 overriding royalty interest;
3-2 (D) a remainder or reversionary interest; or
3-3 (E) an interest arising under a lien.
3-4 (5) "Interested person" means:
3-5 (A) a person who may own or who claims any
3-6 interest in land claimed to be vacant or in any land adjoining or
3-7 overlapping that land as determined from the records of the land
3-8 office, the records of the county clerk's office, and the tax
3-9 records of the county or counties in which the land claimed to be
3-10 vacant is located;
3-11 (B) any other person who asserts a right to or
3-12 interest in the land claimed to be vacant and who is known to the
3-13 applicant or whose identity could be ascertained by the applicant
3-14 with the exercise of reasonable diligence;
3-15 (C) the attorney general; or
3-16 (D) the applicant.
3-17 (6) "Vacancy" means an area of unsurveyed public
3-18 school land that:
3-19 (A) is not in conflict on the ground with land
3-20 previously titled, awarded, or sold;
3-21 (B) has not been listed on the records of the
3-22 land office as public school land; and
3-23 (C) was not, on the date of filing of an
3-24 application:
3-25 (i) subject to an earlier subsisting
3-26 application by an applicant or good-faith claimant; or
3-27 (ii) the subject of pending litigation
4-1 brought by the state to recover the land.
4-2 Sec. 51.173. APPLICATION. (a) To purchase or lease a
4-3 vacancy, a person must file an application. The filing of an
4-4 application commences a proceeding under this subchapter. The
4-5 applicant must file the application with the county surveyor of the
4-6 county in which all or part of the land claimed to be vacant is
4-7 located. If the county does not have a county surveyor, the
4-8 application must be filed with the county clerk.
4-9 (b) The application must:
4-10 (1) describe the land that is claimed to be vacant;
4-11 (2) state whether the applicant is a good-faith
4-12 claimant;
4-13 (3) state whether the applicant seeks to purchase the
4-14 vacancy or obtain a mineral lease on the vacancy;
4-15 (4) state the name and last known address of all
4-16 interested persons; and
4-17 (5) provide any other information that the
4-18 commissioner requires by rule.
4-19 (c) The commissioner by rule shall set an application filing
4-20 fee in an amount of not less than $5. The applicant shall pay the
4-21 filing fee to the county surveyor or county clerk at the time the
4-22 application is filed.
4-23 (d) The county surveyor or county clerk shall mark the exact
4-24 date and hour of filing on the original and a duplicate copy of the
4-25 application and shall return a marked copy to the person filing the
4-26 application. The original shall be recorded in a book kept for
4-27 that purpose separate from the deed or real property records.
5-1 (e) Priority among applications covering the same land
5-2 claimed to be vacant is determined by the time of filing indicated
5-3 by the date and hour marked on the application by the county
5-4 surveyor or county clerk.
5-5 Sec. 51.174. FILING APPLICATION WITH COMMISSIONER. (a) The
5-6 applicant shall file with the commissioner a copy of the
5-7 application with the county surveyor's or clerk's mark indicating
5-8 the time of filing not later than the 10th day after the
5-9 application is filed with the county surveyor or clerk. The
5-10 applicant shall include a filing fee set by the commissioner in an
5-11 amount of not less than $100. If the 10th day after filing falls
5-12 on a Saturday, Sunday, or state or federal holiday, the application
5-13 may be filed on the next regular business day following the 10th
5-14 day.
5-15 (b) The commissioner shall mark the date of filing on the
5-16 application and assign a file number to the application.
5-17 (c) An applicant who does not file the application with the
5-18 commissioner in the time provided in this section or pay the filing
5-19 fee waives all rights under the application.
5-20 (d) The commissioner may refuse to accept for filing an
5-21 application that:
5-22 (1) has material omissions;
5-23 (2) does not describe the land claimed to be vacant
5-24 adequately for the land to be located on the ground; or
5-25 (3) describes as vacant land that has been finally
5-26 adjudicated in a court of this state or of the United States not to
5-27 be vacant.
6-1 Sec. 51.175. DEPOSIT. (a) If an applicant is not a
6-2 good-faith claimant, the commissioner shall estimate the costs of
6-3 proceeding under the application, including the costs of a survey
6-4 made by a licensed state land surveyor or the county surveyor, the
6-5 preparation of copies and working sketches by the land office, the
6-6 mailing or publication of notices and copies, and other similar
6-7 costs, excluding allocable costs of salaries and overhead expended
6-8 by the land office in actually conducting a hearing or preparing
6-9 orders and proposals for decision.
6-10 (b) The commissioner shall notify the applicant in writing
6-11 of the estimated costs and the applicant shall make a deposit with
6-12 the commissioner in the amount of the estimated costs.
6-13 (c) If at any time the commissioner determines that the
6-14 funds on deposit are insufficient to pay the costs of the
6-15 proceeding, the commissioner shall estimate the additional amount
6-16 required and shall notify the applicant in writing to make a
6-17 supplemental deposit of the estimated amount. The notice must be
6-18 dated.
6-19 (d) The applicant shall make an initial deposit or a
6-20 supplemental deposit not later than the 30th day after the date of
6-21 the written notice to make the deposit. The commissioner shall
6-22 cancel the application if the applicant does not make a required
6-23 deposit within the prescribed time. Cancellation terminates all
6-24 rights under that application.
6-25 Sec. 51.176. APPEAL OF AMOUNT OF DEPOSIT. (a) An applicant
6-26 may appeal the amount of an initial deposit or supplemental deposit
6-27 determined by the commissioner in the manner provided for the
7-1 appeal of agency decisions under the Administrative Procedure and
7-2 Texas Register Act (Article 6252-13a, Vernon's Texas Civil
7-3 Statutes).
7-4 (b) If the applicant does not pay the amount determined by
7-5 the district court on or before the 15th day after the judgment of
7-6 the district court becomes final and nonappealable, the
7-7 commissioner shall cancel the application. Cancellation terminates
7-8 all rights under that application.
7-9 Sec. 51.177. DISPOSITION OF DEPOSITS. (a) The commissioner
7-10 shall deposit all initial and supplemental deposits received under
7-11 this subchapter to the credit of a separate trust account in the
7-12 treasury. The treasurer, on the commissioner's order, shall make
7-13 disbursements from that account for purposes authorized by this
7-14 subchapter.
7-15 (b) After proceedings on an application are concluded and
7-16 all expenditures authorized under this subchapter are paid, the
7-17 commissioner shall provide the applicant a complete statement of
7-18 all deposits and expenditures and shall remit to the applicant any
7-19 balance remaining from the deposit or supplemental deposits made by
7-20 the applicant.
7-21 Sec. 51.178. APPOINTMENT OF SURVEYOR. (a) Not later than
7-22 the 60th day after the date on which the required deposit is paid,
7-23 the commissioner shall appoint a licensed state land surveyor or
7-24 the county surveyor of the county in which all or a part of the
7-25 land claimed to be vacant is located to make a survey of that land.
7-26 (b) The fees and expenses paid for the survey are those
7-27 provided by law. If the fees and expenses are not provided by law,
8-1 the commissioner and surveyor shall make an agreement as to the
8-2 fees and expenses reasonable for the work to be performed.
8-3 (c) The fees and expenses shall be paid by the applicant and
8-4 may be paid from the initial deposit or any supplementary deposits
8-5 made by the applicant under this subchapter.
8-6 (d) The commissioner shall promulgate rules setting out the
8-7 qualifications and method of selection of surveyors appointed
8-8 pursuant to this section. The rules shall provide the greatest
8-9 practicable opportunity for all qualified surveyors to obtain
8-10 appointment and shall provide the opportunity for an interested
8-11 party to move for the removal of an appointed surveyor on the
8-12 grounds of bias, prejudice, or conflict of interest. No surveyor
8-13 appointed shall be removed, however, except upon notice to the
8-14 surveyor and all interested parties and hearing. The fact of
8-15 removal of a surveyor shall not be a basis for any disciplinary
8-16 action against that surveyor under the Professional Land Surveying
8-17 Practices Act (Article 5282c, Vernon's Texas Civil Statutes).
8-18 Sec. 51.179. NOTICE TO INTERESTED PERSONS. (a) Not later
8-19 than the 10th day after the date on which the commissioner appoints
8-20 the surveyor, the commissioner shall give notice by certified mail,
8-21 return receipt requested, to all interested persons at the last
8-22 known address. The notice shall contain:
8-23 (1) the date of the notice;
8-24 (2) a statement that a vacancy application has been
8-25 made;
8-26 (3) the name, address, and telephone number of the
8-27 surveyor appointed to make the survey;
9-1 (4) a statement that the survey may begin any time
9-2 after the 20th day after the date of the notice;
9-3 (5) a statement that an interested party is entitled
9-4 to:
9-5 (A) observe the conduct of the survey;
9-6 (B) receive a copy of the final survey report
9-7 and other documents filed by the surveyor; and
9-8 (C) participate in the vacancy proceeding;
9-9 (6) a true and legible copy of the application; and
9-10 (7) other information the commissioner by rule may
9-11 prescribe.
9-12 (b) If the location of an interested person is unknown or if
9-13 a notice is returned as unclaimed or undeliverable, the
9-14 commissioner shall publish notice as prescribed by the Texas Rules
9-15 of Civil Procedure. If notice by publication is made, the survey
9-16 may not begin and further proceedings may not be held until the
9-17 30th day after publication is completed.
9-18 (c) If the applicant, another interested person, or the
9-19 surveyor shows that the delay required by Subsection (b) of this
9-20 section may materially affect the accuracy of the survey because of
9-21 destruction, alteration, or removal of natural features, monuments,
9-22 or witness objects, or for other good cause, the commissioner may
9-23 order the survey to proceed. Notice of the request to proceed with
9-24 the survey and of any order issued in response to the request shall
9-25 be mailed first class to all interested persons.
9-26 (d) The right of an interested person, personally or through
9-27 a representative or representatives, to observe the conduct of a
10-1 survey made under this subchapter does not require a delay in the
10-2 conduct of a survey solely to allow an interested person or that
10-3 person's representative to be present during the survey.
10-4 Sec. 51.180. WAIVER OF NOTICE. (a) An interested person
10-5 may waive service of the notice required by Section 51.179 of this
10-6 code by filing with the commissioner a sworn affidavit stating the
10-7 person's intent to waive notice. The affidavit shall state that
10-8 the person executing the waiver has been provided with a true copy
10-9 of the application filed with the commissioner.
10-10 (b) The affidavit may also state clearly the interested
10-11 person's intent to waive all further notice of the vacancy
10-12 proceedings. If the affidavit states this intent, it must also
10-13 state prominently and clearly that the interested person is aware
10-14 that waiving the right to further notice may result in the loss of
10-15 the opportunity to appear and to contest the application.
10-16 (c) The commissioner by rule may prescribe the form and
10-17 specific content of the affidavit described in this section,
10-18 including additional information to be included.
10-19 Sec. 51.181. SURVEY. (a) Except when notice by publication
10-20 is required, at any time after the 20th day after the date of the
10-21 notice required by Section 51.179(a) of this code, the surveyor
10-22 shall begin the survey of the land claimed to be vacant.
10-23 (b) The surveyor shall prepare and file in the land office:
10-24 (1) a detailed written report of all aspects of the
10-25 survey, including record research conducted, survey corners
10-26 recovered in the course of the field survey, and details of
10-27 boundary construction using recovered corners;
11-1 (2) field notes in the form and content prescribed by
11-2 law, describing the land and the lines and corners surveyed;
11-3 (3) a complete plat depicting in detail the survey
11-4 results;
11-5 (4) the names and addresses of all persons who have
11-6 possession of the land described in the application and a
11-7 description of the lands occupied by those persons; and
11-8 (5) the names and addresses of all persons known to
11-9 the surveyor who have or claim any interest in the land.
11-10 (c) The surveyor shall file the report required by this
11-11 section not later than the 140th day after the date of the notice
11-12 required by Section 51.179(a) of this code. If notice by
11-13 publication is required and the commissioner has not ordered the
11-14 survey to proceed, the surveyor shall file the report not later
11-15 than the 170th day after the date on which notice by publication is
11-16 completed. If the commissioner has ordered the survey to proceed,
11-17 the surveyor shall file the report not later than the 140th day
11-18 after the date of the commissioner's order.
11-19 (d) For good cause shown, the commissioner by written order
11-20 may extend the time for filing the survey. The order shall state
11-21 the cause for the extension and shall be included in the record. A
11-22 single order may not extend the time for filing by more than 60
11-23 days.
11-24 (e) An interested person at the person's own expense may
11-25 have any surveying done that the person considers desirable, but a
11-26 survey report, a plat, or field notes based on a survey made by a
11-27 person not qualified by law to survey public lands in this state
12-1 may not be admitted into evidence in a vacancy proceeding or filed
12-2 in the land office.
12-3 (f) The commissioner shall serve a true copy of the survey
12-4 report, field notes, plat, and all other documents filed by the
12-5 surveyor on each interested person, including those named in the
12-6 survey report, by certified mail, return receipt requested, not
12-7 later than the fifth business day after the survey report is filed
12-8 in the land office.
12-9 Sec. 51.182. ADDITIONAL INTERESTED PERSONS. (a) All
12-10 persons named in the survey report as occupying or as having or
12-11 claiming any interest in the land described in the application
12-12 shall be included in the proceeding as interested persons and shall
12-13 be provided notice as prescribed by this subchapter.
12-14 (b) An application may not be canceled or a proceeding
12-15 terminated because of the discovery of an additional interested
12-16 person unless the commissioner finds that the person filing the
12-17 application knowingly and intentionally omitted the name of the
12-18 person from the application.
12-19 Sec. 51.183. EXCEPTIONS. An interested person may file
12-20 exceptions to the survey report, field notes, and plat not later
12-21 than the 30th day after the date the survey report is filed in the
12-22 land office. A person filing exceptions shall serve a true copy on
12-23 all interested persons and on the surveyor by certified mail,
12-24 return receipt requested. The exceptions shall include a
12-25 certificate of the fact of that service.
12-26 Sec. 51.184. ADDITIONAL SURVEYS. (a) The commissioner or
12-27 the land office staff may consult with the surveyor. The
13-1 commissioner, after notice to the interested persons, may direct
13-2 the surveyor to make additional surveys, to investigate as the
13-3 commissioner considers necessary, and to prepare supplemental
13-4 reports, plats, and field notes the commissioner requires.
13-5 (b) The commissioner shall provide copies of all reports,
13-6 plats, field notes, and other information resulting from additional
13-7 surveys and investigation to all interested persons.
13-8 (c) An interested person may file exceptions or other
13-9 responses not later than the 20th day after the surveyor files the
13-10 required documents with the land office.
13-11 (d) Service of additional documents and exceptions or
13-12 responses to those documents shall be made as provided by Sections
13-13 51.181 and 51.183 of this code.
13-14 Sec. 51.185. ACTION ON APPLICATION. (a) Not later than the
13-15 90th day after the date on which the surveyor files the survey
13-16 report and other documents required to be filed, the commissioner
13-17 shall either deny the application as provided by Section 51.186 of
13-18 this code or hold a hearing to determine whether a vacancy exists.
13-19 (b) Except as provided by Section 51.192 of this code, the
13-20 commissioner may not find that a vacancy exists unless a hearing is
13-21 held.
13-22 (c) The commissioner shall decide all issues raised or that
13-23 could be raised by the application and any exceptions or responses
13-24 to the application, including the existence of a vacancy, the
13-25 boundaries of a vacancy, and the status and rights of any
13-26 interested person as a good-faith claimant or prior applicant.
13-27 (d) The commissioner may not decide in a proceeding on an
14-1 application any claim of the state or permanent school fund for
14-2 damages arising from trespass, the removal or use of minerals or
14-3 geothermal resources, mispayment of proceeds from the sale or use
14-4 of minerals or geothermal resources, damages to the soil,
14-5 vegetation, or other life or habitat, and similar or related
14-6 claims. Those claims may be asserted by the commissioner in
14-7 administrative proceedings under rules adopted by the commissioner
14-8 or through suit brought by the attorney general at the request of
14-9 the commissioner.
14-10 (e) Evidence or testimony regarding the existence or extent
14-11 of mineral development or other economic use of land claimed to be
14-12 vacant may not be introduced or considered, unless that evidence or
14-13 testimony is relevant to determine the existence or boundaries of
14-14 the alleged vacancy or the status of a person as a good-faith
14-15 claimant.
14-16 Sec. 51.186. DENIAL OF APPLICATION. (a) If, after
14-17 reviewing the survey report, any supplemental reports, any
14-18 exceptions to the reports, all pertinent publicly available records
14-19 of the land office and the state archives, and land office staff
14-20 recommendations, the commissioner decides that the land claimed to
14-21 be vacant is not vacant, the commissioner may enter an order
14-22 denying the application. The order shall contain findings of fact,
14-23 conclusions of law, and other matters the commissioner considers
14-24 appropriate.
14-25 (b) The commissioner shall promptly send a true copy of the
14-26 order denying the application to the applicant by certified mail,
14-27 return receipt requested.
15-1 (c) The commissioner shall place in the file assigned to the
15-2 application the original order, all materials filed by the
15-3 surveyor, all exceptions and responses to the surveyor's filings,
15-4 all memoranda provided to the commissioner by the land office
15-5 staff, a list of all files and records of the land office and state
15-6 archives examined by the staff or commissioner in connection with
15-7 the application, and all other relevant papers.
15-8 (d) An interested person may request a rehearing and appeal
15-9 the commissioner's order as provided by the Administrative
15-10 Procedure and Texas Register Act (Article 6252-13a, Vernon's Texas
15-11 Civil Statutes) and by rules adopted by the commissioner consistent
15-12 with that Act. If a rehearing is not requested, the order becomes
15-13 final on the 30th day after the date it is signed. If a rehearing
15-14 is requested and denied, the order becomes final on the date that
15-15 time for appeal to the district court expires. If appeal is taken,
15-16 the order becomes final on the date that a judgment disposing of
15-17 the order becomes final.
15-18 (e) When the commissioner's order denying the vacancy is
15-19 final, all rights under the application are terminated.
15-20 Sec. 51.187. EFFECT OF FINAL ORDER. (a) A final order of
15-21 the commissioner under this subchapter is conclusive with respect
15-22 to the land described in the application or final order. A final
15-23 order of the commissioner does not have the effect of stare decisis
15-24 with respect to land not described in the application or final
15-25 order, but may be considered with all other evidence.
15-26 (b) The cancellation, withdrawal, abandonment, or
15-27 termination of an application, the refusal of the commissioner to
16-1 accept an application for filing, or the order or judgment of any
16-2 court resulting in or affecting such an action has no effect on a
16-3 subsequent determination of whether any land described in the
16-4 application is vacant.
16-5 (c) A decision of the commissioner issued before September
16-6 1, 1993, that denies a vacancy application or letter of inquiry is
16-7 not conclusive as to the existence or nonexistence of a vacancy.
16-8 Sec. 51.188. RULEMAKING; VENUE OF APPEALS. (a) A hearing
16-9 under this subchapter and further proceedings arising from the
16-10 hearing shall be conducted in accordance with the Administrative
16-11 Procedure and Texas Register Act (Article 6252-13a, Vernon's Texas
16-12 Civil Statutes) and rules adopted by the commissioner consistent
16-13 with that Act.
16-14 (b) Appeal of a final order of the commissioner is to a
16-15 district court of the county in which the land claimed to be vacant
16-16 or a part of that land is located. The district court shall review
16-17 the commissioner's order under the substantial evidence rule.
16-18 Sec. 51.189. COMMISSIONER'S ORDER. (a) If it appears to
16-19 the commissioner that the alleged vacancy is not in conflict with
16-20 land previously titled, awarded, or sold by the state or its
16-21 predecessor sovereigns, the commissioner shall enter an order
16-22 declaring the existence of a vacancy and determining all other
16-23 issues.
16-24 (b) If it appears to the commissioner that the land claimed
16-25 to be vacant is not vacant, the commissioner shall enter an order
16-26 denying the application and determining all other issues.
16-27 (c) The commissioner shall base the order on the testimony
17-1 and other competent evidence presented at the hearing, the
17-2 surveyor's filings and all supplements to those filings, any
17-3 exceptions or responses to the surveyor's filings and all
17-4 supplements to those filings, and the publicly available records of
17-5 the land office and the state archives. The commissioner and the
17-6 examiner or examiners who conduct hearings on the application may
17-7 consult with the land office staff and the surveyor to the extent
17-8 permitted by the Administrative Procedure and Texas Register Act
17-9 (Article 6252-13a, Vernon's Texas Civil Statutes). The record
17-10 shall include a list of the names and titles of all staff
17-11 consulted, a list of the files and documents of the land office and
17-12 state archives examined, and a copy of all memoranda provided to
17-13 the examiners or commissioner by the land office staff or by the
17-14 surveyor.
17-15 (d) The order shall contain:
17-16 (1) findings of fact;
17-17 (2) conclusions of law;
17-18 (3) a field note description of the land, if any,
17-19 found to be vacant, sufficient to locate it on the ground, and
17-20 other elements required by law;
17-21 (4) an accurate plat of the land, if any, found to be
17-22 vacant consistent with the field notes and prepared by the surveyor
17-23 or a licensed state land surveyor on the land office staff; and
17-24 (5) other matters the commissioner considers
17-25 appropriate.
17-26 (e) The commissioner's order may adopt, without restating,
17-27 the findings of fact and conclusions of law stated in a proposal
18-1 for decision prepared by the examiner or examiners who conducted
18-2 the hearings and any opinion or statement contained in that
18-3 proposal for decision.
18-4 Sec. 51.190. DETERMINATION OF BOUNDARIES; REOPENING.
18-5 (a) In determining the boundaries and size of a vacancy, the
18-6 commissioner is not restricted to a description of the land claimed
18-7 to be vacant that is provided by the applicant, the surveyor, or an
18-8 interested party. The commissioner shall adopt the description of
18-9 a vacancy that best describes the vacancy and is consistent with
18-10 the information available under this section.
18-11 (b) If in determining the boundaries and size of a vacancy
18-12 it becomes apparent to the commissioner that persons who have not
18-13 been named as interested persons and who have not been served
18-14 notice of the proceeding under the application may be affected by
18-15 the finding that a vacancy exists at the location and with the
18-16 boundaries believed by the commissioner to conform to the record,
18-17 the proceeding shall be reopened and the persons affected shall be
18-18 joined as interested persons and given an opportunity to
18-19 participate adequately in the proceeding. This subsection does not
18-20 require the refiling of an application or the conduct of a new
18-21 survey by the surveyor.
18-22 Sec. 51.191. GOOD-FAITH CLAIMANT STATUS. (a) An applicant
18-23 or interested person who wishes to assert status as a good-faith
18-24 claimant may file notice of claim of good-faith status at any time
18-25 before the 20th day preceding the date on which the first hearing
18-26 begins. The notice of claim of good-faith status shall state the
18-27 grounds for the claim and describe the land claimed to be affected
19-1 by the good-faith status. The notice shall be filed in the land
19-2 office and served on all interested persons by certified mail,
19-3 return receipt requested.
19-4 (b) Filing notice of claim of good-faith status is not an
19-5 admission by the person asserting the claim that a vacancy exists.
19-6 Sec. 51.192. ORDER WITHOUT NOTICE AND HEARING. (a) An
19-7 applicant who asserts status as a good-faith claimant may present
19-8 evidence to the commissioner that:
19-9 (1) the good-faith claimant owns all of the land and
19-10 interests in land completely surrounding the land claimed to be
19-11 vacant;
19-12 (2) there is no subsisting prior application covering
19-13 the land described in the good-faith claimant's application;
19-14 (3) no previous application has been made covering the
19-15 land described in the good-faith claimant's application; and
19-16 (4) the good-faith claimant meets all other
19-17 requirements of a good-faith claimant.
19-18 (b) If the commissioner finds that the evidence presented is
19-19 accurate, further notice to other persons is not required and, on
19-20 acceptance for filing by the commissioner of a survey made by a
19-21 licensed state land surveyor or the county surveyor of the county
19-22 in which the land claimed to be vacant or a part of that land is
19-23 located, the commissioner may enter an order declaring the
19-24 existence of the vacancy and determining the good-faith status of
19-25 the applicant.
19-26 (c) For purposes of this section, land claimed to be vacant
19-27 and surrounded by lands owned only by the good-faith claimant and
20-1 the state is considered to be surrounded completely by land owned
20-2 by the good-faith claimant.
20-3 (d) Two or more persons may jointly apply as good-faith
20-4 claimants under this section if together they meet the requirements
20-5 of Subsection (a) of this section.
20-6 (e) A person who would have been an interested person under
20-7 an application made under this subchapter by a person other than a
20-8 good-faith claimant may move to set aside an order entered under
20-9 this section by filing a written motion with the commissioner not
20-10 later than the second anniversary of the date of that order. The
20-11 person shall serve a true copy of the motion by certified mail,
20-12 return receipt requested, on the applicant and all persons holding
20-13 or claiming under the applicant.
20-14 (f) The commissioner shall set aside an order issued under
20-15 this section finding that a vacancy exists if, after notice and
20-16 hearing, the commissioner finds that the person asserting rights
20-17 under this section, at the time the order declaring the vacancy was
20-18 entered, did not:
20-19 (1) qualify as a good-faith claimant under this
20-20 subchapter;
20-21 (2) own all of the land and interests in land
20-22 surrounding the land claimed to be vacant; or
20-23 (3) meet another material requirement of this section.
20-24 (g) The commissioner on the commissioner's own motion may
20-25 set aside an order after notice and hearing as required by
20-26 Subsections (e) and (f) of this section.
20-27 (h) If the order is set aside, the commissioner shall reopen
21-1 the proceeding on the application and conduct the reopened
21-2 proceeding in the same manner as proceedings on other applications.
21-3 (i) The issues in a reopened proceeding are limited to the
21-4 status of the applicant as a good-faith claimant entitled to rights
21-5 under this section and the rights of any other person as an
21-6 applicant or good-faith claimant.
21-7 (j) An application of a good-faith claimant who does not own
21-8 all of the land and interests in land completely surrounding the
21-9 land claimed to be vacant is treated as an application under other
21-10 sections of this subchapter.
21-11 Sec. 51.193. SALE OR LEASE OF VACANCY. (a) When a vacancy
21-12 has been established by final order, the school land board may sell
21-13 or lease the vacancy as provided by this subchapter.
21-14 (b) The board shall set the sale price and other terms and
21-15 conditions as in all other sales of other lands dedicated to the
21-16 permanent school fund. The sale price may not be less than the
21-17 fair market value as determined by an appraisal conducted by the
21-18 land office.
21-19 (c) The fee prescribed in Section 32.110(a) of this code
21-20 applies to all sales and leases made under this subchapter.
21-21 (d) The board may allow a credit against the sale price in
21-22 an amount not to exceed the actual cost of the survey paid by an
21-23 applicant or good-faith claimant if:
21-24 (1) the purchaser is a person exercising a
21-25 preferential right to purchase under this subchapter;
21-26 (2) the board has reserved all mineral and geothermal
21-27 leasing rights; and
22-1 (3) the board finds that the fair market value of the
22-2 mineral estate is equal to or exceeds 50 percent of the amount of
22-3 the credit.
22-4 Sec. 51.194. MARKET VALUE; MEDIATION; BINDING ARBITRATION.
22-5 (a) A person seeking to purchase a vacancy by exercising a right
22-6 of preferential purchase under this subchapter, by filing a written
22-7 request with the commissioner, may have the issue of market value
22-8 submitted to mediation before a trained mediator acceptable to both
22-9 the board and the person seeking to purchase the vacancy if:
22-10 (1) the price set by the board under Section 51.193 of
22-11 this code exceeds by 15 percent or more the market value estimated
22-12 in an appraisal made by a real estate appraiser certified in Texas
22-13 for the person seeking to purchase the vacancy; and
22-14 (2) the appraisal was made not more than six months
22-15 before the date on which the board set the price.
22-16 (b) If agreement on price is not reached through mediation
22-17 on or before the 60th day after the first mediation session, the
22-18 person seeking to purchase the vacancy, by filing a written request
22-19 with the commissioner, may have the issue of market value submitted
22-20 to binding arbitration.
22-21 (c) A panel of three real estate appraisers certified in
22-22 Texas shall conduct the arbitration. The person seeking to
22-23 purchase the vacancy shall name one member of the panel, the board
22-24 shall name one member of the panel, and the two panel members shall
22-25 name the third member of the panel, who is the panel's presiding
22-26 officer. The board or the person seeking to purchase the vacancy
22-27 may object to and have disqualified the first person named to the
23-1 panel by the other party. Appraisers employed by or who contract
23-2 with the land office are eligible to serve on the arbitration
23-3 panel.
23-4 (d) The arbitration shall be conducted under the rules of
23-5 the American Arbitration Association or under other rules agreed on
23-6 by the parties.
23-7 (e) The decision of the arbitration panel is not subject to
23-8 judicial review.
23-9 (f) The costs of mediation and arbitration shall be shared
23-10 equally by the land office and the person seeking to purchase the
23-11 vacancy.
23-12 Sec. 51.195. CONDITIONS OF SALE; MINERAL AWARDS. (a) In
23-13 all sales, the board shall reserve to the permanent school fund all
23-14 oil, gas, sulphur, and other minerals and geothermal resources and
23-15 shall determine the manner in which those minerals and geothermal
23-16 resources are to be leased.
23-17 (b) Before the sale of a vacancy, the land office shall
23-18 prepare and present to the board a study of the mineral prospects
23-19 and value of the vacancy, taking into consideration the size and
23-20 configuration of the vacancy, its location with respect to other
23-21 surrounding and nearby tracts, the proximity of mineral production,
23-22 and the likelihood of future mineral leasing and development. The
23-23 study shall include a recommendation as to the method most
23-24 advantageous to the state by which the vacancy could be leased.
23-25 (c) The board shall review the study and land office
23-26 recommendations and shall determine whether:
23-27 (1) the state shall retain all leasing rights and the
24-1 vacancy shall be leased as provided in Subchapter B, Chapter 52,
24-2 and Subchapters B and E, Chapter 53, of this code; or
24-3 (2) the owner of the soil shall be designated to
24-4 execute leases as the agent of the state subject to the rights,
24-5 obligations, and liabilities of Subchapter F, Chapter 52, and
24-6 Subchapter C, Chapter 53, of this code.
24-7 (d) If the board determines that the owner of the soil shall
24-8 act as agent under Subsection (c)(2) of this section, the board
24-9 shall establish the division of bonus, rental, and royalty between
24-10 the permanent school fund and the owner of the soil. The portion
24-11 to be paid to the owner of the soil may not be less than 20 percent
24-12 or more than 50 percent. The board may establish different
24-13 portions to be paid to the owner of the soil for the lease of
24-14 different substances.
24-15 (e) If the board provides for lease by the owner of the soil
24-16 under Subsection (c)(2) of this section, the original purchaser is
24-17 a good-faith claimant, and the vacancy was established under an
24-18 application made by a person other than a good-faith claimant, the
24-19 board shall award the applicant a perpetual nonparticipating
24-20 royalty of not less than 1/32 or more than 1/16 of the value of all
24-21 oil, gas, and sulphur produced and a perpetual nonparticipating
24-22 royalty of not less than one percent or more than two percent of
24-23 the value of all geothermal resources and all other minerals
24-24 produced.
24-25 (f) If the board determines that the state shall retain all
24-26 leasing rights as provided in Subsection (c)(1) of this section,
24-27 the board shall award:
25-1 (1) to an applicant other than a good-faith claimant,
25-2 a perpetual nonparticipating royalty of 1/32 of the value of oil
25-3 and gas and one percent of the value of all geothermal resources
25-4 and all other minerals produced; and
25-5 (2) to a good-faith claimant purchasing the vacancy, a
25-6 nonparticipating royalty of 1/32 of the value of oil and gas and
25-7 one percent of the value of all geothermal resources and all other
25-8 minerals produced.
25-9 (g) If a preferential right to obtain the first mineral
25-10 lease on a vacancy is exercised by any person, the state's royalty
25-11 under the lease shall be reduced by 25 percent for a period of five
25-12 years after the date of first production under the first lease if
25-13 sales of production from or attributable to the lease are commenced
25-14 during the primary term of the lease.
25-15 Sec. 51.196. PREFERENTIAL RIGHT OF GOOD-FAITH CLAIMANT.
25-16 (a) A good-faith claimant has a preferential right to purchase or
25-17 lease the portion of a vacancy subject to the good-faith claim.
25-18 (b) A good-faith claimant may exercise the preferential
25-19 right by filing a notice of intent to purchase or lease, on a form
25-20 prescribed by the board, not later than the 90th day after the date
25-21 the order establishing the vacancy becomes final. The good-faith
25-22 claimant shall describe in the notice the portion of the vacancy
25-23 the good-faith claimant seeks to purchase or lease. The good-faith
25-24 claimant shall mail a copy of the notice to the applicant and to
25-25 all other interested persons who have asserted status as good-faith
25-26 claimants.
25-27 (c) All preferential rights held by a good-faith claimant
26-1 expire if the good-faith claimant does not file the notice of
26-2 intent within the time prescribed by Subsection (b) of this section
26-3 or does not complete the purchase or lease within 60 days after the
26-4 board sets the terms of the purchase or lease. For good cause
26-5 shown, the board may extend the time to complete the purchase or
26-6 lease by a period not to exceed 90 days.
26-7 (d) A good-faith claimant exercising a preferential right
26-8 shall repay to the applicant the applicant's reasonable expenses
26-9 incurred in determining the existence of a vacancy, excluding
26-10 filing and attorney fees, not later than the date on which the sale
26-11 or purchase by the good-faith claimant is completed. Failure to
26-12 pay the expenses cancels the preferential right of the good-faith
26-13 claimant.
26-14 Sec. 51.197. PREFERENTIAL RIGHT OF APPLICANT OTHER THAN
26-15 GOOD-FAITH CLAIMANT. (a) On the expiration of the preferential
26-16 right of a good-faith claimant to purchase or lease or if there is
26-17 no good-faith claimant, an applicant who is not a good-faith
26-18 claimant has a preferential right to purchase or lease all or any
26-19 portion of the vacancy.
26-20 (b) An applicant may exercise the preferential right by
26-21 filing a notice of intent to purchase or lease, on a form
26-22 prescribed by the board, not later than the 90th day after the date
26-23 on which the rights of the good-faith claimant expire. The
26-24 applicant shall describe in the notice the portion of the vacancy
26-25 the applicant seeks to purchase or lease. The applicant shall mail
26-26 a copy of the notice to all other interested persons asserting
26-27 status as good-faith claimants.
27-1 (c) All preferential rights held by an applicant expire if
27-2 the applicant does not file the notice of intent within the time
27-3 prescribed by Subsection (b) of this section or does not complete
27-4 the purchase or lease within 60 days after the date on which the
27-5 board sets the terms of the purchase or lease. For good cause
27-6 shown, the board may extend the time to complete the purchase or
27-7 lease by a period not to exceed 90 days.
27-8 Sec. 51.198. RIGHTS ASSIGNABLE. An applicant or good-faith
27-9 claimant may assign all rights in a vacancy or land claimed to be
27-10 vacant. The assignment must be in writing. The assignor shall
27-11 record the assignment in the real property records of the county or
27-12 counties in which the vacancy or land claimed to be vacant is
27-13 located and file a certified copy of the recorded assignment in the
27-14 land office.
27-15 Sec. 51.199. LEASE TERMS UNDER PREFERENTIAL RIGHTS. The
27-16 board shall prescribe terms for preferential purchases or leases
27-17 consistent with this subchapter. The board may not grant a
27-18 preferential lease with a royalty of less than 1/8 of the value of
27-19 all oil, gas, and sulphur produced or less than five percent of the
27-20 value of all geothermal resources and all other minerals produced.
27-21 Sec. 51.200. EFFECT OF PRIOR CONVEYANCES. (a) A mineral
27-22 lease, surface lease, deed, or any other conveyance of any interest
27-23 in land executed by a good-faith claimant before the date of
27-24 completion of a sale or lease under this subchapter does not give
27-25 the grantee under that conveyance any interest in or to the vacancy
27-26 or its minerals.
27-27 (b) A title to land or an interest in land acquired from the
28-1 state under a preferential right does not pass as after-acquired
28-2 title under a covenant of general warranty, description, or other
28-3 provision contained in a conveyance executed before the date of
28-4 completion of a sale or lease under this subchapter.
28-5 Sec. 51.201. RULEMAKING AUTHORITY. (a) The commissioner
28-6 may adopt rules consistent with this subchapter relating to
28-7 applications to purchase or lease vacancies and the determination
28-8 of the existence of vacancies.
28-9 (b) The board may adopt rules consistent with this
28-10 subchapter relating to the sale and lease of vacancies.
28-11 Sec. 51.202. CONFLICT WITH OTHER CODE PROVISIONS. To the
28-12 extent that any provision of this subchapter pertaining to
28-13 vacancies or the sale or lease of vacancies conflicts with any
28-14 other provision of this code, this subchapter controls.
28-15 <Sec. 51.171. ><Sale and Lease of Vacant Land><. Vacant and
28-16 unsurveyed public school land except riverbeds, channels, islands,
28-17 lakes, bays, and other areas in tidewater limits shall be sold and
28-18 leased under the provisions of this subchapter.>
28-19 <Sec. 51.172. ><Definitions><. In this subchapter:>
28-20 <(1) "Good-faith claimant" and "claimant" mean any
28-21 person:>
28-22 <(A) who occupies or uses or has previously
28-23 occupied or used or whose predecessors in interest have occupied or
28-24 used a vacancy for purposes other than exploring for or removing
28-25 oil, gas, sulphur, or other minerals from the vacancy; and>
28-26 <(B) who has himself or whose predecessors in
28-27 interest had the vacancy enclosed or within definite recognized
29-1 boundaries and in possession for a period of 10 years with a
29-2 good-faith belief that the vacancy was included inside the
29-3 boundaries of the survey or surveys that were previously titled,
29-4 awarded, or sold under circumstances that would have vested title
29-5 in the vacancy if it were actually located within the boundaries of
29-6 the survey or surveys whose boundaries are recognized boundaries in
29-7 the community.>
29-8 <(2) "Vacancy" means an area of unsurveyed public
29-9 school land that:>
29-10 <(A) is not in conflict on the ground with land
29-11 previously titled, awarded, or sold;>
29-12 <(B) has not been listed on the records of the
29-13 land office as public school land; and>
29-14 <(C) was, on the date of filing, neither subject
29-15 to an earlier subsisting application to purchase or lease by a
29-16 discoverer or claimant nor involved in pending litigation brought
29-17 by the state to recover the land.>
29-18 <(3) "Applicant" means any person, other than a
29-19 good-faith claimant, who discovers and files an application to
29-20 purchase or lease a vacancy.>
29-21 <Sec. 51.174. ><Purchase of Vacancy by Adjoining Landowner><.
29-22 If the owner of the land adjoining an alleged vacancy files an
29-23 application to purchase the vacancy and no application to purchase
29-24 or lease the vacancy has been previously filed, the owner of the
29-25 adjoining land, who otherwise qualifies as a good-faith claimant,
29-26 shall be considered a good-faith claimant regardless of the length
29-27 of time he has owned the adjoining land or has enclosed the vacancy
30-1 or has had it within definite recognized boundaries and in
30-2 possession with the belief that the vacancy was included within his
30-3 survey.>
30-4 <Sec. 51.175. ><Application to Purchase or Lease a Vacancy><.
30-5 (a) An applicant who claims that a vacancy exists and who desires
30-6 to purchase or lease the vacancy shall file with the county
30-7 surveyor in the county in which any part of the vacancy is located
30-8 a sworn written application in duplicate to purchase or lease the
30-9 vacancy.>
30-10 <(b) The application shall:>
30-11 <(1) describe the land that is claimed to be vacant;>
30-12 <(2) state the desire of the applicant to purchase or
30-13 lease the land under the provisions of this chapter;>
30-14 <(3) give the names and addresses of any owners or
30-15 claimants of land or any interest in land or of leases on,
30-16 adjoining, overlapping, or including the land claimed to be vacant
30-17 as far as can be determined from the records of the land office and
30-18 the county clerk's office in the county in which the land is
30-19 located and the tax records of the county in which the land is
30-20 located;>
30-21 <(4) give the names and addresses of any persons who,
30-22 from facts known to the applicant, assert any right to the alleged
30-23 vacant land; and>
30-24 <(5) state that the applicant knows of no other
30-25 claimants than those listed.>
30-26 <Sec. 51.176. ><Filing Fee><. At the time the application is
30-27 filed, the applicant shall pay to the county surveyor a filing fee
31-1 set by the board of not less than $5.>
31-2 <Sec. 51.177. ><Filing Application With County><. (a) The
31-3 county surveyor shall mark the exact date and hour of filing on the
31-4 original and duplicate copy of each application and shall return
31-5 one copy of the application to the applicant and shall record the
31-6 other copy in a book kept for that purpose.>
31-7 <(b) If the county does not have a county surveyor, the
31-8 preliminary filing of the application shall be with the county
31-9 clerk. The county clerk shall record the application in a book
31-10 kept for that purpose and not in the deed records.>
31-11 <Sec. 51.178. ><Filing Application With Commissioner><.
31-12 (a) Within 10 days after the application is filed with the county
31-13 surveyor, the copy of the application that is returned to the
31-14 applicant shall be filed with the commissioner.>
31-15 <(b) The commissioner shall mark the date of filing on the
31-16 application.>
31-17 <(c) The applicant shall pay to the commissioner a filing
31-18 fee set by the commissioner in an amount not less than $100.>
31-19 <(d) Failure to file the application with the commissioner
31-20 in the time provided by this section and to pay the filing fee
31-21 constitutes a waiver of all rights under the application.>
31-22 <(e) As between applicants, priority dates from the time of
31-23 filing the application with the county surveyor.>
31-24 <Sec. 51.179. ><Deposit><. (a) The commissioner shall notify
31-25 the applicant by letter of the estimated cost of proceeding under
31-26 the application, and within 30 days after the date of the
31-27 commissioner's letter, the applicant shall make a deposit with the
32-1 commissioner to pay the cost of the work that may be necessary to
32-2 comply with the request contained in the application.>
32-3 <(b) On failure to make the deposit required under this
32-4 section, all rights under the application are lost.>
32-5 <Sec. 51.180. ><Insufficient Deposit><. (a) If the deposit is
32-6 insufficient, the applicant shall be requested by letter to make a
32-7 further deposit of an amount determined by the commissioner.>
32-8 <(b) If the further deposit is not made within 30 days after
32-9 the date of the letter, work shall be discontinued and the
32-10 application canceled with the cancellation endorsed on the
32-11 application.>
32-12 <(c) On cancellation, the right to purchase or lease the
32-13 vacancy under the application is lost.>
32-14 <Sec. 51.181. ><Appeal of Amount of Deposit><. (a) The
32-15 applicant is entitled to appeal the estimated cost determined by
32-16 the commissioner to a district court in Travis County by giving
32-17 written notice to the commissioner within 15 days after receiving
32-18 the estimated cost from the commissioner as provided in Sections
32-19 51.179 through 51.180 of this code.>
32-20 <(b) The applicant has 15 days after the district court
32-21 enters its decision in which to pay the amount ordered by the
32-22 court's decision.>
32-23 <Sec. 51.182. ><Deposits as Trust Fund><. Deposits provided
32-24 under Sections 51.179 through 51.180 of this code shall be a
32-25 special trust fund to be used only for the purpose authorized by
32-26 this subchapter.>
32-27 <Sec. 51.183. ><Statement and Refund of Remaining Deposit><. As
33-1 soon as the total expense properly charged against the deposit is
33-2 determined, the commissioner shall render a complete statement to
33-3 the applicant together with any balance remaining from the deposit.>
33-4 <Sec. 51.184. ><Notice of Intention to Survey><. (a) After the
33-5 application is filed with the commissioner and the deposit is made,
33-6 the commissioner shall mail a notice of intention to survey to all
33-7 persons named as interested persons in the application at the
33-8 addresses provided in the application and to the attorney general.>
33-9 <(b) The notices shall be deposited in the post office in
33-10 Austin at least 10 days before the date set for the beginning of
33-11 the survey.>
33-12 <Sec. 51.185. ><Appointment of Surveyor><. (a) The
33-13 commissioner shall appoint a surveyor to make the survey in
33-14 accordance with the notice of intention to survey.>
33-15 <(b) The surveyor shall be a surveyor licensed by the state
33-16 or the county surveyor of the county in which the vacancy or part
33-17 of the vacancy is located.>
33-18 <(c) The fees and expenses paid for the survey shall be the
33-19 same as provided by law, and if the fees and expenses are not
33-20 provided by law, the commissioner and surveyor shall make an
33-21 agreement as to fees and expenses that shall not be more than an
33-22 amount that is reasonable for the work performed.>
33-23 <(d) The fees and expenses shall be paid by the applicant.>
33-24 <Sec. 51.186. ><Survey Report><. (a) Except as provided in
33-25 Subsection (b) of this section, a written report of the survey,
33-26 together with field notes describing the land and the lines and
33-27 corners surveyed and a plat showing the results of the survey,
34-1 shall be filed in the land office within 120 days from the filing
34-2 of the application.>
34-3 <(b) The commissioner may extend the time for filing the
34-4 survey if good cause is shown. The cause for extension of time
34-5 shall be stated in writing and filed as part of the record of the
34-6 proceedings. An extension of time may not be more than 60 days.>
34-7 <(c) The survey report shall give the names and post-office
34-8 addresses of all persons who have possession of the land described
34-9 in the application and of all persons found by the surveyor who
34-10 have or claim any interest in the land.>
34-11 <Sec. 51.187. ><Personal Survey><. Any interested party at his
34-12 own expense may have any surveying done that he considers
34-13 desirable.>
34-14 <Sec. 51.188. ><Hearing and Notice><. (a) Within 60 days after
34-15 the surveyor makes his report, a hearing may be held before the
34-16 commissioner to determine whether or not there is a vacancy.>
34-17 <(b) The date for the hearing shall be provided in the
34-18 notice that the commissioner shall give to all persons thought to
34-19 be interested parties and to all persons shown by the record of the
34-20 proceeding to be interested parties, including the attorney
34-21 general.>
34-22 <(c) The notice of the hearing shall be deposited at the
34-23 post office in Austin at least 10 days before the date set for the
34-24 hearing.>
34-25 <(d) At the hearing, the state and each interested party,
34-26 whether or not he received notice, is entitled to be heard.>
34-27 <(e) The hearing shall be conducted in accordance with the
35-1 provisions of the Administrative Procedure and Texas Register Act
35-2 (Article 6252-13a, Vernon's Texas Civil Statutes).>
35-3 <Sec. 51.189. ><Determination of Vacancy by Commissioner><.
35-4 (a) If it appears to the commissioner that the alleged vacancy is
35-5 not in conflict with land previously titled, awarded, or sold by
35-6 the state, he shall give prompt notice of this finding to the
35-7 applicant and to all persons who were previously identified as
35-8 interested parties.>
35-9 <(b) After the notice is given under Subsection (a) of this
35-10 section, and subject to the preferential right of a good-faith
35-11 claimant, the applicant is entitled for 120 days to purchase or
35-12 lease the portion of the land that is determined to be vacant at a
35-13 price set by the board as provided in this code and with the same
35-14 royalty reservation as provided in Section 51.201 of this code.>
35-15 <(c) No award may be made by the commissioner unless a
35-16 hearing is held, and no presumption may obtain in a suit involving
35-17 the existence of a vacancy as a result of the action of the
35-18 commissioner in this respect.>
35-19 <Sec. 51.190. ><Purchase or Lease by Applicant><. (a) If there
35-20 is no good-faith claimant or if no good-faith claimant exercises
35-21 his preferential right within the time allowed, the applicant is
35-22 entitled to purchase or lease, according to his application, the
35-23 vacancy for which he made application and which is found to exist.>
35-24 <(b) Consideration shall be determined by the board as
35-25 provided in this subchapter, but without consideration of potential
35-26 mineral value.>
35-27 <Sec. 51.191. ><Suit to Recover Land><. A good-faith claimant
36-1 of a vacant or unsurveyed tract of land has 30 days after the sale
36-2 or lease of the land to the applicant to institute suit to set
36-3 aside the sale or lease of the land. If the suit is not instituted
36-4 within the 30-day period by the good-faith claimant, he loses all
36-5 preferential rights to purchase or lease the land.>
36-6 <Sec. 51.192. ><Denial of Vacancy by Commissioner><. (a) If
36-7 the commissioner decides that the area alleged to be vacant is not
36-8 vacant, he shall endorse this decision on the application and file
36-9 it with his finding.>
36-10 <(b) The commissioner shall promptly notify the applicant of
36-11 his decision by registered mail and shall file all reports and
36-12 papers received in connection with the application.>
36-13 <(c) After the commissioner takes all action provided under
36-14 Subsections (a) and (b) of this section, he shall take no further
36-15 action with respect to the application unless the existence of the
36-16 alleged vacancy is determined by a court of competent jurisdiction.>
36-17 <(d) Within 90 days after the commissioner's decision is
36-18 mailed, unless the applicant files suit in a district court in a
36-19 county in which part of the alleged vacancy is located to litigate
36-20 the question of the existence of a vacancy, the applicant's
36-21 application and all preference rights acquired to purchase or lease
36-22 the alleged vacancy become null and void.>
36-23 <Sec. 51.193. ><Preferential Right of Good-Faith Claimant><.
36-24 (a) A good-faith claimant who ascertains that a vacancy exists or
36-25 that a claimed vacancy may exist or who has been notified by the
36-26 commissioner that a vacancy has been found to exist on land claimed
36-27 by him shall have a preferential right to purchase or lease the
37-1 vacancy at any time until 90 days after a decision of the
37-2 commissioner declaring the existence of a vacancy.>
37-3 <(b) The good-faith claimant may purchase or lease the
37-4 vacancy by submitting a written application to the commissioner for
37-5 the purchase or lease of the vacancy and by furnishing to the
37-6 commissioner satisfactory proof that he is a good-faith claimant.>
37-7 <(c) The good-faith claimant is entitled to purchase or
37-8 lease the portion of the land that is vacant at the price set by
37-9 the board subject to the royalty reservations provided in this
37-10 subchapter which are effective on the date the application is
37-11 filed.>
37-12 <Sec. 51.194. ><Term of Preferential Right><. A good-faith
37-13 claimant has a preferential right to purchase the land alleged or
37-14 adjudicated to be vacant until 90 days after the final judicial
37-15 determination of the existence of the vacancy.>
37-16 <Sec. 51.195. ><Effect of Good-Faith Claimant's Application><.
37-17 The application of a good-faith claimant may not be used or
37-18 considered as an admission on his part that a vacancy exists.>
37-19 <Sec. 51.196. ><Procedure for Purchase or Lease by Good-Faith
37-20 Claimant><. (a) On the date a good-faith claimant's application is
37-21 filed, if there is no valid and subsisting application previously
37-22 filed by an applicant covering the alleged vacancy, the application
37-23 of the good-faith claimant shall be filed and shall be accompanied
37-24 by:>
37-25 <(1) a filing fee set by the commissioner in an amount
37-26 not less than $1;>
37-27 <(2) a written report of a surveyor licensed by the
38-1 state or by the county surveyor of any county in which all or part
38-2 of the alleged vacancy is located;>
38-3 <(3) field notes describing the land and the lines and
38-4 corners surveyed;>
38-5 <(4) a plat showing the results of the survey; and>
38-6 <(5) any proof that will show to the satisfaction of
38-7 the commissioner that the applicant is a good-faith claimant.>
38-8 <(b) The good-faith claimant may file his application to
38-9 purchase or lease and within 120 days from the date of filing the
38-10 application with the commissioner have a survey made of the alleged
38-11 vacancy and file the report, field notes, and plat in the land
38-12 office together with proof that he is a good-faith claimant.>
38-13 <(c) If it appears to the commissioner that the alleged
38-14 vacancy is not in conflict with land previously titled, awarded, or
38-15 sold by the state, the commissioner shall grant the application
38-16 under the provisions of this subchapter. Before the application is
38-17 granted, the commissioner may hold a hearing at which interested
38-18 persons may appear.>
38-19 <Sec. 51.197. ><Failure to Exercise Preferential Right Within
38-20 Certain Time><. (a) If the good-faith claimant does not exercise
38-21 his preferential right to purchase within 90 days after a decision
38-22 of the commissioner under the provisions of this subchapter, the
38-23 applicant shall be awarded an oil, gas, and mineral lease on not
38-24 more than seven-eighths of the minerals.>
38-25 <(b) The consideration for the lease shall not be less than
38-26 $1 an acre, and the lease shall be for a primary term set by the
38-27 board of not more than five years.>
39-1 <(c) The lease shall be subject to other consideration and
39-2 terms required by the board and the preferential right of a
39-3 good-faith claimant until 90 days after final judicial
39-4 determination under Section 51.194 of this code.>
39-5 <Sec. 51.198. ><Repayment of Applicant's Expenses><. Within 90
39-6 days after the commissioner declares the vacancy to exist, the
39-7 good-faith claimant shall repay to the applicant the expenses
39-8 incurred in determining the existence of a vacancy, except filing
39-9 fees, as provided in this subchapter or the good-faith claimant
39-10 will lose all preferential rights to purchase or lease the land.>
39-11 <Sec. 51.199. ><Judicial Determination of Good-Faith Claimant><.
39-12 If the commissioner fails to determine whether or not there is a
39-13 good-faith claimant or if his decision is questioned by an
39-14 applicant or by a person asserting to be a good-faith claimant, the
39-15 issue shall be determined in any suit brought under this subchapter
39-16 to determine the existence of the alleged vacancy.>
39-17 <Sec. 51.200. ><Rights of Holders of Title and Holders of
39-18 Interests in Title of a Claimant><. (a) If all owners holding title
39-19 under the claimant or an interest in the title under which the
39-20 claimant claims to be a good-faith claimant accept the provisions
39-21 of this section and contribute their proportionate part of the
39-22 royalty reserved to the state and the royalty awarded to the
39-23 applicant, the purchase by the good-faith claimant under the
39-24 preferential right inures distributively to their benefit.>
39-25 <(b) The royalty reservations shall be deducted
39-26 distributively and proportionately from the mineral interest of
39-27 each owner including mineral leases if the area is under a mineral
40-1 lease.>
40-2 <(c) As a condition of this subchapter, the good-faith
40-3 claimant receiving the patent or award or for whose benefit a
40-4 patent or award is received shall recognize the proportionate
40-5 interests of other owners who benefit by the award of the
40-6 preferential right.>
40-7 <(d) The consideration for the purchase shall be determined
40-8 by the board without considering the potential value of minerals or
40-9 any improvements located on the vacancy but shall not be less than
40-10 $1 an acre. The state retains the right to recover from the party
40-11 or parties liable the market value when produced of all oil, gas,
40-12 sulphur, or other minerals that may have been produced from the
40-13 area before the effective date of the patent or award less an
40-14 offset to the operator for the actual cost of development and
40-15 production.>
40-16 <(e) No mineral lease executed by a good-faith claimant
40-17 before filing the vacancy claim may give the lessee any interest in
40-18 or to the vacancy.>
40-19 <(f) No title to land or to a mineral interest in land
40-20 acquired from the state under a preferential right may be held to
40-21 pass as after-acquired title because of any covenant of general
40-22 warranty, description, or other provision contained in any
40-23 conveyance executed before the date of award under the preferential
40-24 right.>
40-25 <Sec. 51.201. ><Reservation of Minerals><. (a) If a good-faith
40-26 claimant purchases a vacancy located within five miles of a well
40-27 producing oil, gas, or other minerals in commercial quantities, not
41-1 less than a free royalty of one-eighth of all oil, gas, sulphur,
41-2 and other minerals shall be reserved to the state.>
41-3 <(b) If a vacancy that is not covered by Subsection (a) of
41-4 this section is sold, not less than a free royalty of one-sixteenth
41-5 of all oil and gas production and one-eighth of all sulphur and
41-6 other minerals shall be reserved to the state.>
41-7 <(c) If a good-faith claimant fails to exercise his
41-8 preferential right to purchase a vacancy within 90 days after the
41-9 commissioner determines the existence of the vacancy, the mineral
41-10 interest reserved by the state shall be not less than a free
41-11 royalty of one-eighth of the oil and gas and not less than a free
41-12 royalty of one-sixth of the sulphur and other minerals.>
41-13 <(d) The state shall reserve not less than a free royalty of
41-14 one-eighth of all oil, gas, sulphur, and other minerals on
41-15 vacancies that are leased by the state as determined by the board.>
41-16 <(e) An oil, gas, or other mineral lease on land in which
41-17 the state reserves a free royalty interest is not effective until a
41-18 certified copy of the recorded lease is filed in the General Land
41-19 Office.>
41-20 <Sec. 51.202. ><Mineral Reservations Under Sale Made to
41-21 Claimant After 90-Day Deadline><. If a good-faith claimant does not
41-22 exercise his preferential right to purchase until after 90 days
41-23 after the decision of the commissioner determining the existence of
41-24 a vacancy, the sale made to the claimant shall be subject to a
41-25 reservation to the state of not less than a free royalty of
41-26 one-eighth of all oil, gas, sulphur, and other minerals and subject
41-27 to any lease made by the state to the applicant.>
42-1 <Sec. 51.203. ><Royalty for Applicant><. If there is a valid
42-2 subsisting application previously filed by an applicant on the date
42-3 that the good-faith claimant files his application to purchase
42-4 under a preferential right, and if the good-faith claimant
42-5 exercises his preferential right to purchase within 90 days after
42-6 the commissioner's decision under this subchapter, a free royalty
42-7 of one-sixteenth of all oil, gas, sulphur, and other minerals that
42-8 may be produced from the land shall be added to the royalty
42-9 interest reserved to the state and shall be awarded by the state to
42-10 the applicant. The free royalty shall be deducted proportionately
42-11 from the good-faith claimant's award.>
42-12 <Sec. 51.205. ><Appeal><. (a) A person who is aggrieved by any
42-13 action taken by the commissioner under the provisions of this
42-14 subchapter or with reference to any application to purchase or
42-15 lease a vacancy may institute suit in the district court of any
42-16 county in which part of the land is located to try the issues of
42-17 boundary, title, ownership of any alleged vacancy involved, and
42-18 preferential rights of the person.>
42-19 <(b) Within 30 days after the suit is filed, the plaintiff
42-20 shall have a certified copy of the original petition served on the
42-21 attorney general and the commissioner by the sheriff or a constable
42-22 of Travis County and shall have the officer's return filed with the
42-23 papers in the suit.>
42-24 <(c) Whether the attorney general answers or intervenes in
42-25 the suit or institutes a suit, the venue of all suits following the
42-26 filing of the application shall be in the county in which the land
42-27 or part of the land is located.>
43-1 <(d) If the litigation is prosecuted to a final judgment,
43-2 the judgment is binding on the state.>
43-3 <(e) The attorney general must intervene on behalf of the
43-4 state in suits brought under this section.>
43-5 <(f) The suit must be filed in accordance with the
43-6 provisions of the Administrative Procedure and Texas Register Act
43-7 (Article 6252-13a, Vernon's Texas Civil Statutes) relating to
43-8 appeals from agency decisions.>
43-9 SECTION 2. Section 118.161, Local Government Code, is
43-10 amended to read as follows:
43-11 Sec. 118.161. Fee Schedule. A county surveyor shall collect
43-12 the following fees:
43-13 (1) for recording the field notes and plat of a survey
43-14 for a tract of land, providing copies of field notes, plats, or
43-15 other papers or records, and certifying any copies, the same amount
43-16 collected by the county clerk of the county as a filing fee;
43-17 (2) for surveying a tract of land or designating a
43-18 homestead:
43-19 (A) the actual expenses incurred, including all
43-20 expenses of making the survey, preparing a survey report, field
43-21 notes, plat, and other documents required by law, and filing those
43-22 documents in the records of the county surveyor or the General Land
43-23 Office; and
43-24 (B) any fees for surveying services agreed on by
43-25 the county surveyor and the person seeking the services; and
43-26 (3) for filing an application to purchase or lease a
43-27 vacancy or for surveying a vacancy, the amounts provided by
44-1 Subchapter E, Chapter 51, Natural Resources Code. <Inspecting and
44-2 recording the field notes and plat of a survey for any tract of
44-3 land:>
44-4 <(A) less than one-third of a league ..... $1.00>
44-5 <(B) one-third of a league ............... $2.00>
44-6 <(C) more than one-third of a league ..... $3.00>
44-7 <(2) Recording surveys and plats required by law to be
44-8 placed on the map of a new county, for each 100
44-9 words ................................... $0.20>
44-10 <(3) Examination of papers and records in his office
44-11 at the request of any person ............ $0.25>
44-12 <(4) Copies of all field notes and plats, or other
44-13 papers or records in the office, for each 100
44-14 words, including certificate ............ $0.20>
44-15 <(5) Surveying of any tract of land, including all
44-16 expenses in making the survey, and returning
44-17 the plat and field notes of the survey:>
44-18 <(A) for each English lineal mile actually
44-19 run ............................... $3.00>
44-20 <(B) for less than one English lineal mile
44-21 run ............................... $2.50>
44-22 <(6) Services in designating a homestead, including
44-23 pay for chain carriers, for each day's
44-24 service ................................ $5.00>
44-25 SECTION 3. Subsection (b), Section 72.006, Local Government
44-26 Code, is amended to read as follows:
44-27 (b) A surveyor appointed under this chapter is entitled to
45-1 receive the actual expenses incurred in making the survey and any
45-2 fees for surveying services agreed on by the surveyor and the
45-3 counties <$3 for each mile surveyed>.
45-4 SECTION 4. Subsection (a), Section 21.078, Natural Resources
45-5 Code, is amended to read as follows:
45-6 (a) The plane coordinate values for a point on the earth's
45-7 surface, to be used in expressing the position or location of the
45-8 point in the appropriate zone, of either system, shall consist of
45-9 two distances, expressed in U.S. Survey Feet and decimals of a foot
45-10 or varas or tenths of a vara when using the Texas Coordinate System
45-11 of 1927 and expressed in meters and decimals of a meter, in U.S.
45-12 Survey Feet or decimals of a foot, or in varas or tenths of a vara
45-13 when using the Texas Coordinate System of 1983.
45-14 SECTION 5. (a) The change in law made by this Act applies
45-15 only to an application to purchase or lease a vacancy under
45-16 Subchapter E, Chapter 51, Natural Resources Code, that is filed
45-17 with a county surveyor or county clerk on or after the effective
45-18 date of this Act.
45-19 (b) An application filed before that date is governed by the
45-20 law in effect on the date the application is filed, and the former
45-21 law is continued in effect for that purpose.
45-22 SECTION 6. This Act takes effect September 1, 1993.
45-23 SECTION 7. The importance of this legislation and the
45-24 crowded condition of the calendars in both houses create an
45-25 emergency and an imperative public necessity that the
45-26 constitutional rule requiring bills to be read on three several
45-27 days in each house be suspended, and this rule is hereby suspended.